Supreme Court Justice Scalia as spokesman in the culture wars

Something is under siege in the United States today, and it is not only the Catholic Church. The Catholic Church has a history of failing to protect its young members from sexual predators in the priesthood and is under siege in the civil and criminal courts in several states and, indeed, in several countries.

A way to view the problem faced by the church involves its premises. The church asserts that it, meaning its (bureaucratic) priesthood, is supreme on earth in all matters having to do with sin. Priests have committed sexual aggressions against young parishioners. The church sees these as sins, and since it is in charge of sins, it has had trouble thinking that this is anybody's business but its own. The way it deals with sin is through prayer and absolution. Church officials did this and then moved the priests away from places where their reputation was sullying the church. Problem solved until some of these priests repeated their behavior.

However, the acts of the priests who had sexual contact with children and unwilling adolescents were, in the eyes of society, crimes. They were also acts which, when acted upon in a way which served to protect the church and not the victims, exposed the church to civil penalties. The principle acted upon by the church was that tradition (that the church is the final authority in matters of sin) trumps all else, in this case the safety and rights of the victims and civil law. The culture of the church, in the first instance, acted on cases of abuse as though they were moral questions, not legal ones, and in moral questions it recognizes no superior.

The American republic was founded on a quite different set of principles by necessity. It would have been impossible to found a federal system in 1787 unless all the competing traditions and loyalties could be set aside and a new order allowed to emerge. On matters of religion, the founders agreed to disagree. They were, most of them, pragmatists. Pragmatism requires that all other considerations be set aside and the path which leads to the most desirable achievable result be taken. This is a way of thinking about things which tends to challenge ideologies and time-honored beliefs. A multi-faceted, multi-cultural society would be impossible had the founders adopted a single religion or ideology. Although there have been exceptions, the American experience has largely been debates about whether a certain course of action would have a progressive or not-so-progressive outcome. Different people can define what those terms mean, but they have to do so in a context. Pragmatists worry about contexts and outcomes. Rigid formalists worry about adherence to hierarchy and following the letter of the rule, no matter the outcome or the context.

The most visible proponent in the debate about the fate of America is Supreme Court Justice Antonin Scalia ? who has been writing Supreme Court opinions, authoring a book ("A Matter of Interpretations") and speaking in public. He describes himself as a strict constructionist who claims to look only at the text of the law and the Constitution. "The Constitution that I interpret and apply is not living, but dead," he has said. "Our first responsibility is not to make sense of the law ? our first responsibility is to follow the text of the law."

The Constitution is dead? Justices should not make sense? He has urged more than adherence to the text. He adheres to the expectation that people are required to put the tenets of their religion before the good of the state. Speaking in Chicago in January, he referred to what he feels is the failure of democracy. He said: "The reaction of people of faith to the (sic) tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible." This language indicates a belief in the divine right of the state and, by extension, of himself as an agent of the state. It is an ancient belief, strongly associated in history with Europe, and one that has been a minority opinion, even an obscure opinion, since 1787 in America. It is an example of a Supreme Court justice who is expressing distaste for democracy and the separation of church and state. It is also a statement of someone who wants to take the United States down a very frightening road.

A true ideologue is a person who believes he or she has embraced a perfect understanding of the world. Whether in the form of insider information about God's will or a claim to infallible intelligence, such people embrace their beliefs with energetic fervor. This is understandable among priests in the Catholic Church, but it has proven to be far from practical. The idea of the church's immunity from civil authority may have been workable centuries ago when church and state were as one, but in a secular democracy it can spell real trouble. As a practical matter, the church would have been wise to defer to civil authority and recognize the abuses as crimes. But the church, for as long as possible, was not practical.

Ideologues cannot purposefully adapt pragmatic solutions because to do so often requires compromise, which would require them to abandon or at least modify some of the tenets of their idealism (faith, ideology or system of belief). That would, they believe, betray those principles. So they can't do the practical thing as a matter of principle. This can be a particular problem for people who claim to be unable to be practical because they are upholding morality and they believe morality to be above discussion on the temporal plane.

And so we have a Supreme Court justice who is preaching, in the context of what is called "strict constructionism," that the court has no obligation to be practical. Something that might do great harm to the country must be done because of an immutable text. Consequences are not at issue. Common sense, according to Scalia's thinking, has no currency. The culture wars, always an attack on democracy and pragmatism in the name of morality and religion, are heating up.

John C. Mohawk, Ph.D., columnist for Indian Country Today, is an author and professor in the Center for the Americas at the State University of New York at Buffalo.